On Monday’s Newsroom program, CNN’s senior legal analyst Jeffrey Toobin stuck with his analysis of Supreme Court nominee Sonia Sotomayor from late June- that the judge was “mainstream,” and that it would be difficult to use the reversal of her decision in the New Haven firefighters case and her “Wise Latina” comment against her.
When anchor Rick Sanchez asked if one of those issues was more problematic, Toobin replied, “I think it’s a combination....some Republicans will use [it] to paint a picture of her as kind of an activist...someone who is more interested in helping her community than in interpreting the law. That’s a very tough sell, but I think that’s the argument that they’re building towards.”
During an earlier appearance on the June 29, 2009 edition of the CNN program with anchor Heidi Collins, the very day that the Supreme Court issued its ruling in the Ricci/firefighters case, the analyst stated that the decision “will be a main focus of the attack against her by conservative senators, who will say that her views are out of step with the Supreme Court. Now, that will be a somewhat-tough argument to make, because...her views are clearly in-step with four justices on the Court, including the justice she will be replacing. So, it’s not like her position was so far out the mainstream on this case that you couldn’t even get a single justice to agree with her.”
Two weeks later, Toobin first echoed this earlier analysis during an appearance on American Morning, which occurred 15 minutes into the 7 am Eastern hour of the program. When anchor John Roberts asked if there were “any potential problematic areas, any pitfalls for her,” he included not only the Ricci decision and the “Wise Latina” comment, but also named Sotomayor’s involvement with the Puerto Rican Legal Defense fund as one of the three “factors” that the Republicans on the Senate Judiciary Committee would use against her. He continued that “the collective effect of those three factors- some Republicans will argue- show that she has a bias in favor of affirmative action plaintiffs, identity politics- you know, old-fashioned liberalism. Now, there are very good arguments against that. There are many affirmative action cases or Latina rights cases where she’s voted for the defense. So she certainly will have an answer ready on those questions.”
Over eight hours later, just after the bottom of the 3 pm Eastern hour of CNN’s Newsroom, Sanchez first congratulated the analyst for being referenced during the Sotomayor hearings. The two joked about how Toobin’s “name [was] dropped,” but they omitted the context of the reference. Rhode Island Senator Sheldon Whitehouse, a first-term Democrat, used one of Toobin’s own writings to attack Chief Justice John Roberts by name, as well as the Republican/conservative judicial philosophy. According to the AP’s transcript of the senator’s remarks, Whitehouse read from a commentary that the analyst wrote for The New Yorker in May, where he argued that Roberts was a “doctrinaire conservative,” and used it to criticize so-called right-wing “code words,” such as judicial “modesty” and “restraint,” and the analogy that a justice should be like a baseball umpire.
The CNN anchor then brought up his interview with Senator John Cornyn earlier in the hour, who, according to Sanchez, “seemed to be saying that he’s just about giving as much import to what she said as he is her record- that was interesting, wasn’t it?”
Toobin then made his second “echo” of his analysis from June in his reply: “Well, it is interesting, because there’s a lot more for Republicans to work with- with her speeches...with her off the bench comments, which have been far more controversial than her rulings, which have been very mainstream- very extensive. She has a huge record after 17 years as a federal judge. But the comments are a little more provocative, and that gives the Republicans more to work with.”
When Sanchez asked basically the same question as Roberts did earlier, the legal analyst continued with his “tough sell” comment:
SANCHEZ: What’s the biggest problem for her- is it the Ricci case, or the quote, ‘Wise Latina woman,’ stop quote?
TOOBIN: I think it’s a combination. It’s basically- it’s the Ricci case- the firefighters case, where she was overturned; it’s the ‘Wise Latina’ comment, where she suggested it was somehow better to be a Latina than a- than a white male; and it’s- it’s a membership on the board of directors of the Puerto Rican Legal Defense Fund- all of which the Republicans- some Republicans will use to paint a picture of her as kind of an activist, a- someone who is more interested in helping her community than in interpreting the law. That’s a very tough sell, but I think that’s the argument that they’re building towards.
Later in the segment, Toobin, without prompting, speculated that something that the Republicans didn’t talk about during the initial day of the Sotomayor hearings was pretty significant:
TOOBIN: ...Can I- can I add one thing, Rick?
SANCHEZ: Yeah, go ahead.
TOOBIN: Which I- something that really struck me about today’s hearing, which was something you didn’t hear- same-sex marriage. You did not hear the Republicans threatening- you know, if you- she’s confirmed, we’re going to have same-sex marriage. I think the politics of same-sex marriage-
SANCHEZ: Is that ‘cause Karl Rove isn’t in the White House anymore?
TOOBIN: Well, I think Republicans are recognizing that scare tactics that might have worked in 2004 do not necessarily work in 2009. The subject of gay- same-sex marriage has gotten so much more mainstream so quickly-
SANCHEZ: You think?
TOOBIN: Oh, I do.
SANCHEZ: You think- you don’t think it’s- it was certainly a wedge issue that- some would argue- that it helped get President Bush elected a second- for a second term.
TOOBIN: Absolutely- that’s what I said- seven- 2004- I think it was a big issue in 2004, but that’s five years ago, and I think the politics of that issue are changing fast, and I thought the fact that the Republicans didn’t raise it was interesting.
The CNN senior legal analyst concluded the segment with his theory of Supreme Court nominations:
SANCHEZ: ...[I]t seems like there’s a lot of political correctness going on today, and I- and I agree with Lindsey Graham- I don’t think a lot of folks in that hearing room are actually saying what they think. They are saying what they think they need to be heard thinking.
TOOBIN: Well, you know, I think there’s- there’s a lot to that, Rick, because- you know, each president who proposes a nominee says- well, all he or she is going to do is enforce the law. You know, that’s- that’s it- just- just apply the law.
SANCHEZ: Yeah.
TOOBIN: Well, the fact is, when you’re dealing with questions like, does the Constitution protect a woman’s right to abortion; may the University of Michigan consider race when deciding whom to admit- those are questions that do not have obvious answers under the law. The law is ambiguous, and it takes politics- it takes ideology to decide those questions-
SANCHEZ: Yeah.
TOOBIN: And nobody really wants to acknowledge that. They say- oh, I’ll just apply the law. The law is not clear, and that’s why politics matter.
SANCHEZ: But- but you’re an expert, and if you said what you just said in that hearing room, they’d throw your butt out.
TOOBIN: Well, they had any number of reasons to do that. (Laughs)
SANCHEZ: (Laughs) I mean- I mean, if she had- what I’m trying to say, and I’m being funny about it-
TOOBIN: Right, yeah.
SANCHEZ: But if she had said that, they’d say- oh, forget about it- you know, case dismissed, you’re out of here.
TOOBIN: I- you know, that’s part of the code that governs the Supreme Court- is that you’re supposed to pretend-
SANCHEZ: Yeah.
TOOBIN: That these legal issues are completely divorced from politics- when it’s my belief that you can’t decide these questions, however you come out- pro-life, pro-choice- without bringing your politics to bear on them.
SANCHEZ: Sometimes reality and perception are two different things. Jeffrey Toobin, as usual- hey, congrats on that shout-out today, by the way.
TOOBIN: Thanks, Rick.
